STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK T. BROGAN, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) Case No. 99-1671

)

HOWARD O. SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted on September 14, 1999, in Tallahassee, Florida, by Daniel Manry, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Matthew K. Foster, Esquire

Brooks, LeBoeuf, Bennet & Foster, P.A. 863 East Park Avenue

Tallahassee, Florida 32301

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent violated Sections 231.28(1)(a), (c), (d), and (i), Florida Statutes (1997), and Florida Administrative Code Rule 6B-1.006(5)(a) and

(h) by having his teaching certificate permanently revoked in New Jersey for dealing in stolen property and failing to disclose the revocation on the application for renewal of his Florida teaching certificate. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated. Unless otherwise stated, all references to rules are to rules promulgated in the

Florida Administrative Code in effect on the date of this Recommended Order.)

PRELIMINARY STATEMENT

On November 10, 1998, Petitioner filed an Administrative Complaint against Respondent. Respondent timely requested an administrative hearing.

By letter dated April 7, 1999, Petitioner referred the matter to the Division of Administrative Hearings ("DOAH") to conduct an administrative hearing. The matter was assigned to the undersigned and scheduled for hearing on September 14 and 15, 1999.

At the hearing, Petitioner called no witnesses but submitted

10 exhibits for admission in evidence. Respondent did not appear and did not submit any evidence.

The identity of the exhibits, and any attendant rulings, are set forth in the record of the hearing. Neither party requested a transcript of the record. Petitioner timely filed its proposed recommended order ("PRO") on September 27, 1999. Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for regulating certified teachers in the state. Respondent holds Florida Educator's Certificate Number 165660. Respondent's Florida teaching certificate is valid through June 10, 2001.

2. On January 13, 1994, the State of New Jersey permanently revoked Respondent's educator's certificate in New Jersey for dealing in stolen cars with a student, for failing to report his

   criminal arrest to the New Jersey Board of Education (the "Board"), and for failing to notify the Board of the progress and status of the matter. Respondent was represented by counsel in an administrative proceeding that lasted over two years.

3. The Board and the Township of Irvington in Essex County, New Jersey, filed charges against Respondent on October 18, 1991. Respondent filed an answer and affirmative defenses. On January 15, 1992, the Board referred the matter to the Office of Administrative Law to conduct an administrative hearing.

4. An Administrative Law Judge (the "ALJ") conducted an administrative hearing on September 15 through October 1 and on December 15, 1992. During the hearing, Respondent testified in his own behalf.

5. In relevant part, the ALJ found that Respondent knowingly and intentionally acquired, possessed, and used stolen cars. The ALJ further found that Respondent executed a false bill of sale for one of the vehicles, forged one of the owner's signatures, applied for and obtained fraudulent registrations for the stolen vehicles, was involved in dealing in stolen cars with a student, failed to notify the Board of his arrest for dealing in stolen property, and failed for many months thereafter to apprise the Board of the status of the matter. The ALJ recommended that Respondent should forfeit his tenured teaching position and be dismissed from his position.

6. The Initial Decision of the ALJ was forwarded to the New Jersey Commissioner of Education (the "Commissioner"). Respondent filed exceptions to the ALJ's findings and

   conclusions. Respondent's exceptions were considered by the Commissioner.

7. By Final Decision entered on June 9, 1993, the Commissioner accepted the findings and conclusions of the ALJ which found Respondent guilty of receiving and dealing in stolen automobiles with a student and for failing to disclose his arrest. The Commissioner ordered that a copy of the Final Decision be forwarded to the State Board of Examiners for its review and, in its discretion, further appropriate action. The Commissioner mailed a copy of its Final Decision on June 9, 1993. However, the documentary evidence does not show the addressee or address of the mailing.

8. On September 23, 1993, the Board of Examiners issued an Order to Show Cause why Respondent's educator's certificate should not be revoked. On October 13, 1993, the Board of Examiners mailed the Order to Show Cause both by U.S. Mail and by certified mail. The evidence does not show the addressee or the address of the mailing. The certified mail was returned unclaimed. Respondent did not contest the Order to Show Cause.

9. On January 13, 1994, the Board of Examiners permanently revoked Respondent's educator's certificate in New Jersey. On March 1, 1994, the Board of Examiners mailed a copy of the order of revocation. The evidence does not show the addressee or the address of the mailing.

10. On June 26, 1996, Respondent submitted an application for renewal of his professional Florida Educator's Certificate. By sworn statement, Respondent certified that the responses to

    questions and information in the application for renewal were true, correct, and complete.

11. In relevant part, the renewal application asked:

    Have you ever had a teaching certificate revoked . . . by a state other than Florida

    . . . . If YES, you must give the state where your certificate was revoked. . . .

12. Respondent answered "yes" to the question on the renewal application. However, Respondent gave Florida as the state in which his certificate had been revoked and then represented that his teaching certificate had been reinstated.

13. In the application for renewal of his Florida teaching certificate, Respondent failed to disclose the revocation of his teaching certificate in New Jersey. Respondent knew, or should have known, that his teaching certificate in New Jersey had been revoked. Respondent had constructive knowledge of the revocation of his teaching certificate in New Jersey.

14. The evidence creates a rebuttable inference that Respondent knew, or should have known, of the revocation of his New Jersey teaching certificate. Respondent failed to present evidence to rebut the inference. Failure to disclose the revocation of his New Jersey teaching certificate on the application for renewal of his Florida teaching certificate was a reckless and careless disregard for the truth.

    CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. The parties received adequate notice of the administrative Hearing. Section 120.57(1).

16. The burden of proof is on Petitioner. Florida Department of Transportation vs. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino vs. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Petitioner must satisfy its burden of proof by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

17. Petitioner satisfied its burden of proof. The evidence is clear and convincing that Respondent violated Section 231.28(1)(a), (c), (d), and (i), and Rule 6B-1.006(5)(a) and (h).

18. In relevant part, Section 231.28(1)(a) authorizes the Florida Education Practices Commission (the "Commission") to permanently revoke Respondent's teaching certificate if it is shown that Respondent:

    1. Obtained the teaching certificate by fraudulent means;

       
       

       1. Has been guilty of . . . an act involving moral turpitude;

          
          

       2. Has had a teaching certificate revoked in another state; or

       
       

       (i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by the State Board of Education rules. . . .

19. Respondent violated Section 231.28(1)(i) by failing to maintain honesty in his professional dealings with the Commission and by submitting fraudulent information on his application for renewal. See Rules 6B-1.006(5)(a) and (h). Respondent also

    violated Section 231.28(1)(d) when his teaching certificate in New Jersey was revoked.

20. Respondent violated Section 231.28(1)(b) when he was found guilty by the Commissioner in New Jersey of dealing in stolen property, forgery, and fraud. Each is an act involving moral turpitude. See Soetarto v. Immigration and Naturalization Service, 516 F.2d 778, 780 (7th Cir. 1975)(holding theft to be an act involving moral turpitude).

21. The issue of whether Respondent violated Section 231.28(1)(a) by obtaining a renewed teaching certificate by fraudulent means presents a thornier proposition under the evidence of record. Statutes prohibiting conduct by means of fraud, misrepresentation, or concealment require Petitioner to show by clear and convincing evidence that Respondent engaged in an intentional act of misconduct. Cf. Walker v. Florida Department of Business and Professional Regulation, 705 So. 2d 652, 654 (Fla. 5th DCA 1998); Munch v. Department of Business and Professional Regulation, 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); Morris v. Department of Professional Regulation, 474 So. 2d 841, 843 (Fla. 5th DCA 1985).

22. The evidence in this case is limited to documentary evidence of the administrative proceeding in New Jersey and Respondent's application for renewal in Florida. The documentary evidence shows that the Initial Decision of the ALJ in New Jersey recommended only that Respondent be dismissed from his position as a teacher in Irvington, New Jersey. The Initial Decision did not recommend revocation of Respondent's teaching certificate.

23. Respondent had actual notice of the Initial Decision recommending termination of employment. Respondent filed exceptions to the Initial Decision.

24. The documentary evidence does not show by clear and convincing evidence that Respondent had either actual or constructive notice of the Final Decision of the Commissioner entered on June 9, 1993; or either the Order to Show Cause or Order of Revocation entered by the Board of Examiners on September 23, 1993, and January 13, 1994, respectively. The Final Decision, Order to Show Cause, and Order of Revocation each state the mailing date of the respective document but do not state the address to which each was mailed, whether the document was mailed to Respondent or his attorney, if he remained represented by counsel, or whether the documents sent by regular mail, wherever they were sent, were returned as undelivered.

25. If Respondent did not have actual or constructive knowledge of the revocation of his teaching certificate in New Jersey, Respondent would not possess the intent, or scienter, that is necessary to commit fraud within the meaning of Section 231.28(1)(a). Disciplinary statutes such as Section 231.28(1)(a) must be strictly construed in favor of the person to be penalized. Munch, 592 So. 2d at 1143; Fleischman v. Department of Professional Regulation, 441 So. 2d 1121, 1133 (Fla. 3d DCA 1983). A statute imposing a penalty is never to be construed in a manner that expands the statute. Hotel and Restaurant Commission v. Sunny Seas No. One, 104 So. 2d 570, 571 (Fla. 1958).

26. In the absence of actual or constructive knowledge of the revocation of his license in New Jersey, Respondent's failure to disclose the revocation on the application for renewal in Florida would be less than fraud. In such a case, Respondent would be guilty of submitting a false application but not a fraudulent application.

27. Intent is a state of mind. In the absence of direct proof, the intent required to prove fraud may be inferred from the surrounding facts and circumstances. Skold v. State, 263 So. 2d 627 (Fla. 3d DCA 1972).

28. The evidence provides a basis for drawing a rebuttable inference that Respondent possessed the culpable intent required as an essential element of fraud in Section 231.28(1). However, Respondent failed to present any evidence needed to rebut the inference.

29. In the absence of any evidence to rebut the inference of intent, the inference of intent is supported by clear and convincing evidence. Respondent's failure to disclose the disciplinary action in New Jersey on the application for renewal of his Florida teaching certificate was a reckless and careless disregard for the truth. See Ocean Bank of Miami v. Inv-Uni Investment Corp., 599 So. 2d 694, 697 (Fla. 3d DCA 1992)(holding that scienter or guilty knowledge may be established by showing that a person is reckless or careless as to the truth of the matter asserted). Respondent is guilty of violating Section 231.28(1).

30. Section 231.28(1) authorizes the Commission to impose various penalties for the offenses committed by Respondent. Authorized penalties include the permanent revocation of Respondent's teaching certificate.

31. The violation by Respondent in this case is not a single isolated incident of fraud or moral turpitude. The evidence shows that Respondent has engaged in a consistent pattern and practice of such acts for the past six years in multiple jurisdictions.

32. There are no mitigating factors in this case. Respondent did not appear at the hearing to offer any evidence of mitigation, to explain his actions, or to show that the failure to disclose the revocation of his license in New Jersey was not fraudulent within the meaning of Section 231.28(1)(a).

33. Revocation of a certificate should be aimed at the dishonest or unscrupulous. Dryer v. Florida Real Estate Commission, 370 So. 2d 95, 100 (Fla. 4th DCA 1979); Rivard v. McCoy, 212 So. 2d 672, 674-676 (Fla. 1st DCA 1968); Brod v. Jernigan, 188 So. 2d 575, 581 (Fla. 2d DCA 1966). Petitioner created by clear and convincing evidence a rebuttable inference that Respondent was dishonest and unscrupulous in submitting the application for renewal of his Florida teaching certificate. Respondent failed to appear at the hearing to rebut the inference.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Commission enter a final order finding Respondent guilty of violating Sections 231.28(1)(a), (c), (d), and (i), and Rule 6B-1.006(5)(a) and (h), and permanently revoking Respondent's teaching certificate in Florida.

DONE AND ENTERED this 4th day of October, 1999, in Tallahassee, Leon County, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1999.

COPIES FURNISHED:

Kathleen M. Richards, Executive Director Educational Practices Commission Department of Education

224-E Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Jerry W. Whitmore, Program Director Professional Practices Commission Department of Education

325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400

Michael H. Olenick, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

Carl Zahner, Esquire Department of Education The Capitol, Suite 1701

Tallahassee, Florida 32399

Matthew K. Foster, Esquire

Brooks, LeBoeuf, Bennet & Foster, P.A. 863 East Park Avenue

Tallahassee, Florida 32301

Howard O. Smith

1304 West 7th Street Sanford, Florida 07071

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 99-001671

Orders for Case No: 99-001671